Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Amy J. St. Eve than Assigned Judge
The Court denies Respondent's motion to dismiss . Respondent must respond to the merits of Petitioner's habeas petition by no later than 6/10/11. Petitioner's reply is due on or before 7/1/11.
O[ For further details see text below.] Notices mailed by Judicial staff.
On January 18, 2011, Petitioner Johnnie Henderson filed the present habeas petition pursuant to 28 U.S.C. § 2254(d). Before the Court is Respondent's motion to dismiss without prejudice based on Henderson's "mixed" habeas petition. For the following reasons, the Court denies Respondent's motion to dismiss. Respondent must respond to the merits of Henderson's habeas petition by no later than June 10, 2011. Henderson's reply is due on or before July 1, 2011.
On December 19, 2001, a jury convicted Henderson of first-degree murder in the Circuit Court of Cook County after which the Circuit Court sentence him to 75 years imprisonment. On September 10, 2003, the Illinois Appellate Court affirmed his conviction and sentence. The Supreme Court of Illinois then denied Henderson's petition for leave to appeal ("PLA").
Thereafter, Henderson filed a post-conviction petition pursuant to 725 ILCS 5/122-1, et seq., that the Circuit Court denied. He then appealed his post-conviction petition to the Illinois Appellate Court. On July 27, 2010, the Illinois Appellate Court affirmed the Circuit Court's denial of his post-conviction petition. On approximately August 27, 2010, Henderson filed a PLA that the Supreme Court of Illinois denied on November 8, 2010.
Meanwhile, Henderson filed a motion for relief from judgment pursuant to 735 ILCS 5/2-1401, that the Circuit Court denied on October 5, 2010. Henderson's appeal from the denial of his motion for relief of judgment is currently pending in the Illinois Appellate Court.
On January 18, 2011, Henderson filed the present pro se petition for a writ of habeas corpus. See 28 U.S.C. § 2254(d). Construing Henderson's pro se habeas petition liberally, see Martin v. Bartow, 628 F.3d 871, 878 (7th Cir. 2010), he brings the following habeas claims: (1) his trial counsel was constitutionally ineffective for failing to order a DNA test, failing to move to suppress evidence, failing to call expert or other witnesses, and failing to make a record of the pretrial publicity; (2) his post-conviction counsel was constitutionally ineffective for conceding that his post-conviction filings were successive petitions, rather than amended petitions, which prevented him from raising all of his post-conviction claims; (3) the trial court violated the double jeopardy clause of the Fifth Amendment by instructing the jury as to both the felony murder and underlying murder; (4) the trial court violated his right to a fair trial and right to be found guilty beyond a reasonable doubt by giving jury instructions that shifted the burden of proof and misstated elements of the offense; (5) the State violated his right to a fair trial by constructively amending the grand jury indictment through evidence and arguments presented at trial; (6) the trial court violated his right to an impartial jury by preventing full voir dire regarding pretrial publicity; (7) the trial court violated his Sixth Amendment rights when the court sentenced him based on facts not charged in the indictment and not submitted to the jury pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (8) his extended-term sentence was based on an unconstitutional statute; and (9) the trial court violated the confrontation clause of the Sixth Amendment by admitting into evidence a co-defendant's confession. Henderson also brings a "Brady claim" pursuant to the Fourth Amendment which is not cognizable on collateral review pursuant to Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).
Before bringing a habeas claim in federal court, a habeas petitioner must exhaust all remedies available to him in state court. See Gonzales v. Mize, 565 F.3d 373, 380 (7th Cir. 2009); 28 U.S.C. § 2254(b)(1)(A). In particular, a habeas petitioner must fully and fairly present his federal claims through one full round of state court review before he files his federal habeas petition. See O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Gray v. Hardy, 598 F.3d 324, 327 (7th Cir. 2010). "A procedural default occurs where a habeas petitioner 'has exhausted his state court remedies without properly asserting his federal claim at each level of state court review.'" Crockett v. Hulick, 542 F.3d ...